[2012] EWCA Civ 1500

Media – private hearings

Summary

This case merits brief mention because, although it is not a COP case, it sheds light by analogy upon the approach that should be taken to the reporting of sensitive information relating to the subject of proceedings. It also contains important obiter dicta as to the form of words that should be used in reporting restrictions orders.

The Court of Appeal was asked to consider the appropriate balance between Article 8 and Article 10 ECHR in the context of a local authority’s duties to redact a report that it had prepared pursuant to its statutory duties under the Children Act 2004 and the Local Safeguarding Children Boards (Wales) Regulations 2006.

A parent had been convicted of a serious offence relating to X. The local authority had prepared an overview report and Executive Summary. The Executive Summary would, in accordance with Guidance published by the Welsh Assembly Government, be available publicly. However, it referred to the criminal proceedings in such a way that the family was readily identifiable. Further, it referred to matters relevant to Y which had not be disclosed as part of the criminal proceedings and which had not previously been in the public domain. An order imposing reporting restrictions in respect of the Executive Summary had been granted and the Local Authority applied for a variation. At first instance, Peter Jackson J had referred to the balance between Article 8 and Article 10 but allowed publication of the Executive Summary (with the local authority’s proposed redactions).

On appeal, the Court of Appeal criticised the approach taken to the balancing of the competing Article 8 and Article 10 ECHR rights in play. Munby LJ (giving the lead judgment) reiterated that the rights and welfare of the child are of particular importance and must be protected (In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593; ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166 considered). He noted that the statutory scheme at issue expressly envisaged a balancing act between Article 8 and 10 as, whilst there was a presumption of publication, it was subject to a requirement that any report was anonymised as necessary. There could in principle be situations in which the necessary form of anonymisation was such that no publication could be allowed.

On the facts of these proceedings, Munby LJ held that the redactions proposed by the Local Authority (names, ages and gender of X and Y) were not sufficient to meet the objective of protecting their identities and thus, whilst Peter Jackson J had correctly identified the relevant law, he had not grappled with this fundamental issue. A more drastic form of redaction than that approved by the judge was "necessary" in the Strasbourg sense if the balance between the public interest in the publication of the Executive Summary and the private interests of the children were to be struck properly and appropriately.

Munby LJ also made obiter comments in relation to the shortcomings of the wording of the reporting restrictions order which it held was insufficiently clear as to enable a layman to readily ascertain which documents might lawfully be published. The comments that he made were intended to be of wider import, and the principles apply equally to COP proceedings. They therefore merit setting out in (almost) full:

"60. …The relevant paragraph for present purposes provided, by way of exception to the injunctions contained in the order, that:

Nothing in this Order shall prevent any person from … publishing the anonymised Executive Summary of the Serious Case Review carried out in relation to [name] and dated July 2012 (this Court having secured assurances from the [local authority] in relation to the form of the Summary and its date of publication)

61. It is an elementary principle of justice and fairness that no order will be enforced by committal unless it is expressed in clear, certain and unambiguous language. So far as this is possible, the person affected should know with complete precision what it is that he is required to do or to abstain from doing. The authorities setting out this sometimes overlooked principle are legion. In Harris v Harris, Attorney-General v Harris [2001] EWHC 231 (Fam), [2001] 2 FLR 895, [288], I set out what I said was a no doubt selective anthology. Here I can content myself with what Lord Westbury LC said in Low v Innes (1864) 4 DeGJ&S 286, 295–296: the order must:

‘lay down a clear and definite rule … The Court … should, in granting an injunction, see that the language of its order is such as to render quite plain what it permits and what it prohibits.’

The principle has been endlessly repeated down the years since.

62. A related principle is that an order should not require the person to whom it is addressed to cross-refer to other material in order to ascertain his precise obligation. In Ellerman Lines Ltd v Read [1928] 2 KB 144, 157, Atkin LJ said:

‘That judgment when drawn up, instead of reciting what the order of the Court was and what the defendants were restrained from doing, only refers to continuing an injunction granted by Rowlatt J, varied by Roche J, and continued by Greer J, without stating what it is that the Court was ordering the defendants to abstain from doing. That appears to me to be very bad practice … It is a matter of very great importance that the orders of the Court … should make it quite clear what the Court is ordering to be done. There is considerable laxity in this matter … Practitioners and the officers of the Court should see that orders are not passed unless they are in proper form.’

In Rudkin-Jones v Trustee of the Property of the Bankrupt (1965) 109 Sol Jo 334 the order as drawn read "It is ordered that an injunction be granted in the terms of Notice of Motion for Injunction". Lord Upjohn said:

‘I do want to protest as strongly as I can at the granting of injunctions in that form. It means then that the person against whom the injunction is granted … has to look at another document in order to see what it is that he is enjoined from doing … It cannot be too clearly understood … that a person is entitled to look and look only at the order to see what it is that he is enjoined from doing. He looks at that order and finds out from the four walls of it and from no other document exactly what it is that he must not do.’

63. In the present case matters were even worse. When we inquired of counsel which was the authentic text of the document referred to in the order they were unable to give us any very confident response…

64. I appreciate that all this was happening on the last day of term, but the upshot is that even now, even the lawyers immersed in the litigation are unable to state with confidence what precisely it is that is permitted by the order. It is, in my judgment, a wholly unacceptable state of affairs. It is intolerable that a layman who risks imprisonment – a reporter, perhaps, or a newspaper editor wishing to publish some document which he may think is of public interest and importance – should be left to decipher an order of the court in this way, especially if, when seeking enlightenment, he turns to the local authority who obtained it only to be told that even they are not sure.

65. There is a perfectly simple remedy. If the order, having referred to the document, then contains words to the following effect

‘being the document entitled [etc] marked 'X' and initialled by the judge a copy of which is annexed to this order’

there will be no doubt as to what it is that the order prohibits and permits. Nor, importantly, will there be any doubt that the document annexed to the order is indeed in the form approved by the judge."

Comment

The judgment highlights the centrality of children’s welfare in the assessment of whether a document can be sufficiently anonymised for publication to proceed. Given the emphasis placed by the Court on the fragility and vulnerability of X and Y, the approach of the Court of Appeal is potentially relevant to vulnerable adults.

Munby LJ’s obiter comments regarding the RRO are also an important reminder of the need for clarity in any order restricting publication of documents, particularly in circumstances where there is a penal notice attached.